Public spaces are often overlooked when discussing constitutional issues in the UK. Professor Antonia Layard considers the current problems concerning access to public space in both rural and urban areas across the UK . She suggests changing this by reclaiming the remaining areas for public space.

“Get off my land”. The expression is one of the defining leitmotifs of property law, conjuring up visions of rural landowners in wellies, monitoring use of their estate. The assumption is that the site is “private property” with which the landowner can do as he or she wishes.

In rural locations, there are public footpaths and voluntary agreements with farmers giving access. Since the Countryside and Rights of Way Act 2000, we have also had the “right to roam” on mapped open access land, which includes mountains, moor, heath and down as well as registered commons. Since the Marine and Coastal Access Act 2009, there are also plans for access to the entire English coastline. Once walking, we can take a dog (on a lead) and have a picnic (though not bathe in non-tidal water nor use a metal detector).

The schemes are not perfect; footpaths may be unavailable or too intrusive, while appropriate conduct is legally prescribed. Yet even Kinder Scout is now managed by the National Trust and Andrew Robert Buxton Cavendish, the 11th Duke of Devonshire, apologised on the 80th anniversary for the “great wrong” done by his grandfather to those taking part in the mass trespass in 1932. There are now some shared assumptions about a right to rural space.

So, what of cities, towns or suburbs? Here we have access to the highway, following an important decision in DPP v Jones in 1999. Both the road and the pavement, though, are congested with traffic of all kinds and both prioritise “flow” over using the space in more stationary ways. Where then is public space?Where can citizens come together and engage in a shared associational life, or even walk a dog, hand out a leaflet, play a guitar or a game?

The answer is almost always, “not here”. For even in squares, piazzas or retail centres built on principles of open architecture, the principle remains the same as that set out in a case named Entick v Carringtonin1765: “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing”. There is no express legal category of public space and such activities cannot take place against the landowners’ wishes.

While this situation is not new, it is becoming increasingly problematic given changing property practices, particularly the escalation of privately-owned and very large, urban retail schemes. Now, in many of our city centres, cycling, walking a dog, playing guitars or taking photographs are all prohibited. Urban cores are increasingly the property of multinational property companies (enclosing 42 acres of central Liverpool in “Liverpool One”, for example or 36 acres of central Bristol in “Cabot Circus”). These companies may call spaces “public squares” or “public realm” in their brochures yet they are very much under their own control, surveilled in the first instance by private security guards and CCTV.

(Credit: Dawn Ellner, CC by 2.0)

At mainline stations and shopping centres, “undesirable” individuals can be served with notices revoking their implied permission to enter – these ‘spatial ASBOs’ are achieved simply through property law.

It is also increasingly difficult to voice dissent. On private land, it is impossible so much as to hand out a leaflet if the owner objects. Even on public land, while Occupy managed to stay for four months in front of St Pauls, the litigation has set a precedent, which means that such extensive protests cannot be repeated.

There is in England no opportunity now for protests such as those in Kiev or Tahrir Square, even on land owned by a public authority (which gives some spatial expression to rights to of freedom of expression as well as assembly and association under the European Convention on Human Rights as implemented by the Human Rights Act 1998). After a reasonable protest (as defined by the police and the courts), the cases are now being consistently decided with protestors, including students, being swiftly evicted.

Even in apparently public parks there are rumbling disputes over proposals to charge sports teams or fitness trainers. Local community centres are increasingly required to charge for the use of space, attempting to ‘make public assets pay’ at a time of severe local authority budget cuts. When pubs are disappearing, particularly in economically poorer neighbourhoods, there may be nowhere else to go. In some neighbourhoods, there are major qualitative and quantitative shortfalls in public space.

In Bristol, it was even recently suggested that people in public parks could be prevented from climbing trees, playing football (if it excluded other people from the space), skateboarding, or flying model airplanes (except in a designated area). Given the demographic of the city, and the instincts of the Mayor, the proposals are unlikely to become law – but the proposal was seriously made and the Council would have had the legal powers to achieve this.

So, in urban spaces, people cannot walk a dog, play a guitar or take photographs in privatised retail urban cores. Dissenters are unable to hand out a leaflet on privately owned land. People are running into problems using parks. There is a significant decline in associational space in some places. Council employees are drafting legal powers to impose byelaws on the recreational use of parks. What can be done?

There is a solution, reclaiming back some of the places that are left, whether they are privately or publicly owned, for public space. We could expand the use of the Scottish countryside model which gives “a statutory right of responsible access” to both urban and rural public spaces. A right of responsible access contains express limitations as well as spatial restrictions. Unsuitable places can be expressly excluded. But piazzas, squares or shopping centres whether covered or ‘open architecture’ are all regularly understood as public spaces rather than private property. It is to these public spaces that we could all, by virtue of our citizenship, have access.

That would mark a fundamental commitment to making the idea of the public spatial, of creating space for a vita activa, in Arendt’s phrase. After all, as the Commission for Architecture and the Built Environment asked back in 2005: “what are we scared of?”

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Antonia Layardis a Professor of Law at the University of Bristol. Antonia’s research is in law and geography where she explores how law, legality and maps construct space, place and ‘the local’.

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One issue implicit in this post is the making of ‘stopping up orders’ under planning, highway and other powers. These are the legal instruments that are used to allow buildings – and indeed the spaces around buildings – to be put up on land that was once a road or pavement. Whilst I do not suggest repeal of these powers – the loss of public space in this way is not always a bad thing – it is worth looking at them in the context of a debate about the public realm.

Such orders extinguish highway rights of ‘passage and repassage’ – the ancient right of the public at large to go up and down a highway. The land then ceases to be highway. The ‘middle of the road rule’ transfers ownership of the road surface – the tarmac, for example – to the owner of the land on either side.

For example, consider the case of what looks to be an ordinary tarmac road in an urban area, maintained by a local council (in law, a ‘highway maintainable at the public expense’ maintained by a ‘local highway authority’).

Powers to make such orders may be used to allow planning permission to be granted for development to be erected on land that was previously the pavement (the ‘footway’) or the road (the ‘carriageway’). For example, a developer putting up a new office block might want to control some of the land that is currently the pavement. An order would allow that to happen. All the public would see is that the surface of part of the pavement changed – its quite possible that no one would actually notice the change in ownership that follows the making of the order. Yet the extent of the public realm controlled by public authority is reduced, albeit in a modest way. In the case of larger development such as a football stadium or shopping mall, the development site could include a network of streets that are to a lawyer, highways of this kind and so would need to be stopped up as part of a bigger scheme, perhaps involving compulsory purchase powers.

By s247 of the Town and Country Planning Act 1990, the Secretary of State may by order authorise the stopping up or diversion of any highway [outside Greater London – the power for highways in London lies with the council of a London borough ] if he is satisfied that it is necessary to do so in order to enable development to be carried out for which planning permission has been granted. See generally Part X of that Act.

Under s116 of the Highways Act 1980, if it appears to a magistrates’ court, after a view, if the court thinks fit, by any two or more of the justices composing the court, that a highway (other than a trunk road or a special road) as respects which the highway authority have made an application (a) is unnecessary, or (b) can be diverted so as to make it nearer or more commodious to the public, the court may by order authorise it to be stopped up or, as the case may be, to be diverted.

See generally Part VIII of that Act.

Should these laws be repealed? No. Do we need to look again at these provisions? Yes. The challenge it seems to me will be to object to their use in any one case to restrictions on freedoms of association and expression.